49 F. 270 -

49 F1d 270

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Case Text

270

I'EDERAL REPORTER,

vol. 49·.

UNITED STATES

v.

CASE

et

(DiBtr;Cct Coun,N'. D.New York. FE!bruary 19,1899.)ACTION

in theajlQounts of :a postmasWz:. "reinsufllcient to support a jUdgment for the United, Statesln.anaction on his bond, if the "said ofllcials act io a judicial and not in a inlniaterial clapacity in arrhing at the balance due. .
:;'

At Law. Action by the United States against Riley W. Case on his bond as postmaster, to recover anaI1Eiged deficit in his accounts. It was tried'at the'.term.of this'court held at Rochester, May 12, 1891. The plaintiff to prove its case depended solely upon statements of aocount: made :by·theofficials: ()f the post.offiee department, and certified as 'required :oy,,}aw. ' It ,,;li.s contended on behalf of the plaintiff that these to estahlish:1iability under sections 886 aild889 of the R,evised Statutes, and thaact of June 17, 1878, (208t. MLarge, pp. 140,.141,) which latter act providescase where the postmaster general shan. be satisfied that R postmaster hallrnade a false of buainess. it ShliH :be within his discretlon to ,withhold. 0l'lBuch and, to allow. Rny compensation under be Play def:m ressolliibJe,." . . . , :A verdict pfo jo/mQ, for .theplaintiff,the ,court reserving the of the objection8until the heaJ'ing of the mo. IDlljd!}, to the verdict and for·a new tiQnwbicq trial. This motion was thattbeaccounts oft'ereq·:diq pliO\1ea cause of actiODjand, 8econd,that the matters in \>etween .hlld, betore t.h.e commencement of this aotioQ" beep fully allo,w:edaQd settled. T,be district attorney withdraws oppqsition to themotiol1 upop. the aut,horityofU. S. v.Hutcheson, infra. Motion granted. . ' ."D,. 8.. S. Atty., and John E·. Smith and Prank Ferguecm, Asst. U. 8. Attys. Walter S. HubbelJand John Van VoorhiB, for defendants.

a.

aCCQunts offered in evidence by the plainthede(elldants into,4el.>t, because,theofficia,ls of the post-office the,delEmnants in gross with "commissions illellproperty,UlegaJlyretained,"withduta wort I of proof, 8l)lfar as the accounts ShbW, the charges; These officials have tried the question at issue between the department and the postmaster, found him guilty of malfeasance, assessed the damages"againsthim and certified their findings. The evidence, if there was any, on which these findings are based, has not been returned. There is nothing to show what the property was tbat the postmaster is accused of retaining im prop. erly, or its value, or the reasons which induced the officials of the department to make the charges relating thereto. The account does not show why the commissions are illegal. It contains nothing but the unsup-

,,.' QoXE, District ,J

, IN REWALLER;

271

ported decree of condemnation.· If this sweeping and arbitrary power is conceded to the officers of the department, they could as well have made the deficiency. twice or tb.ree as it is. .They have only to mak(;lll charge, no matter howunfoundeditmay be, and have it certified, and the postmaster and his bondsmen are without remedy. Of course the foregoing suggestion is made merely by way of illustration, without intending to intimate that such abuse of power has ever taken place; in the case at bar the officials unquestionably acted with entire good faith. It is thought, however, that it W8.15 not the intention of the law that executive officers· should be clothed with the power thus to usurp the ince of court and jury and decide, finally and irrevocably, questions of fact upon ex parte and hearsay statements. Such power is not found in the sections of the statute referred to. They were intended to, promote the convepience of the departments and the courts. If the original ofa paper, book or accountia evidence, a copy properlycertitied, is equally admissible. It was. not the intention of congress; to admit incompetent evidence un4er the guise ofacertiticate. following authorities are in.accord views: U. B. v.Jonea, 8 Pet. 375j U. B.v. Jj'o'fwythe; 6 McLellu;.li84;U. B. v. B,#/wd, 3 Pet.12j .Hoyt v. U. B., 10 How·.109j U. S. y.:$mitk,35 Fed. Rep. amv. U. S., 6. PetJ 172, 202jSmith v; u,. S.,:5. Pet. 292j U. S. v. Edwards, 1. McLean, 467; U. S.v. Patterson, Gilp. 47; v. Battie, Id.97j Brttt:ev. U. B., 17 How. 437,:440jU. S. v. &·1'.8, 1 How. 250. it is said that the provisioneo! the act of June 17,1878, which, authorize the postttlaster-general .towithholdllOmmissions on reare false, do not permit him to master with commissions on alleged false returns where the accounts have, in the due course of business, been settled and allowed. He may withhold commissions, but having allowed them, he cannot recover them without due process of law. There is great force in this position. U. B. v. Hutches01t, Fed. 540;.. [Jo.;.s. v. Johnston, 124U. S. 237, 8 Sup. Ct. Rep. 446. .... .. . ' It follows the verdict must be trial granted.

In re

1.

WALLER.

(Dldr,fl"t" Court, W.i:>;So';'th

WXTNESSES-FEES-POST-OFll'IOB.

darouna..

19,1892.

I:

i.!

P08T-OWXCB('''' "

'j, '.-'

. .A person. employed. bY 'a postmaster who reeeives a fixed sala.ry, without any sllowance for clerk hire, is not a "clerk or officer of the United States; " Within the meaning of Rev. St. U. s. S850, declaring that such persons shall receive only their nt:lcessar,y when summoned .... witll.esses in behalf of the
:,;., . . :. . . .

.

There 18 no such office as deputy-postmaster of the United States.
;l!' .